Sal Salido was a material handler in Acme’s foundry. Although forklift trucks were the norm, some areas of the plant required the good old-fashioned lift-and-tote manual labor in areas where forklifts couldn’t negotiate. It was in one of these places at the end of a Friday shift that Sal sprained his right arm, maybe suffering a torn shoulder muscle. Nevertheless, Sal struggled through a Saturday shift, but making sure to take the easier tasks that needed to be done.
Sal came to work on Monday morning, describing his injury in detail to anyone who would listen. At the middle of the Monday shift, claiming that the pain was too intense, Sal reported the injury to Ben Yeahdoh, the material handling supervisor. Ben sent Sal to the company nurse, who told Sal not to use his right arm until after Acme can get a full evaluation from a doctor at the local clinic. The nurse then arranged for an assistant to escort Sal to and from the clinic.
Ben also went through channels to get Sal’s injury reported to the third-party administrator that handled Acme’s injury and workers’ compensation matters. But Ben didn’t fully believe Sal’s story.
Ben noted that Sal waited several days before reporting the injury and that Sal worked at least part of the Saturday shift. Ben thought it odd that he saw Sal using a cell phone without apparent discomfort, despite the device being held in the right hand.
Other plant-floor supervisors heard about the situation and recommended that Ben enlist other supervisors to keep an eye on Sal to determine the extent to which the arm injury was legitimate. The next day, one supervisor sent Ben two videos that showed Sal driving a car in the parking lot, even though the doctor had forbidden driving until the arm had healed. Another supervisor reported that Sal regularly used the “injured” arm without apparent discomfort and provided grainy cell-phone photos of Sal’s arm use to bolster the assertion.
Acme’s collective bargaining agreement required a post-injury debriefing to allow the company to learn how to prevent someone else from getting injured in the same manner. Sal insisted that his arm was still too painful and managed to find excuses to avoid having to participate. When Acme finally held the post-injury meeting, Sal was uncooperative, giving a repeated response: “I don’t recall.” The HR manager asked Sal if “I don’t recall” is his final word on the matter, and Sal replied, “I don’t recall.”
In accordance with the bargaining agreement, Dan de Lyon, the HR manager, directed Sal to provide Acme with a written narrative of the details surrounding the injury. Sal refused initially, arguing that his oral statements at the debriefing were sufficient. But two days later, Sal submitted a two-page diatribe criticizing Acme for its harassment of injured workers and the severe emotional stress it inflicts on them. Dan told Sal that this document didn’t meet the requirements and demanded that Sal submit a proper narrative before the end of the shift. When that didn’t happen, Ben fired Sal, citing what he considered to be Sal’s obvious lies at the post-accident meeting and subsequent insubordination.
Sal sued, claiming that Ben’s report to the third-party claims administrator led to this termination as retaliation for the compensation claim that Sal was likely to file in the near future.
An academician says:
Sounds like a good lawyer question, which I am not qualified to answer. But let me try. Companies frequently check up on workers who file disability claims, particularly if there’s no clear-cut evidence for the problem. If Sal had lost an arm, then Acme would have no reason to monitor his behavior to see if he’s using the lost arm. But some injuries are difficult to ascertain whether they are real or fake. So, the company might monitor the injured worker’s behavior. Usually companies hand this job to private investigators that specialize in such cases. That would have been my choice for Sal’s case, and I’d rather have the supervisors focus on other matters. Many union contracts have fairly detailed instructions regarding cases such as this, including procedures for processing the claim. I’m not sure what the process was in Sal’s case, but Acme should have made sure that it followed the process. Acme could have assigned Sal to “light work,” but given Sal’s “pain” and the fact that the injury hadn’t been verified, I wouldn’t see this as an option. It’s interesting to note that the union didn’t intervene in Sal’s case. Acme could have asked for union assistance in explaining to Sal what his responsibilities were. However, given Sal’s lack of cooperation, it appears that termination was the only real option left.
Professor Homer H. Johnson, Ph.D., Loyola University Chicago
(312) 915-6682, email@example.com
An attorney says:
Insubordination provides a legitimate reason to terminate an employee. And courts recognize a claim that an employee was fired because the employer anticipated the worker filing a workers' compensation claim. Beyond that, the outcome of this claim is going to depend upon facts not revealed in the story.
The prime fact is how Acme treated other workers who failed or refused to provide verbal or written accounts of their work-related injuries. If they were consistently terminated without warnings, it will be more difficult for Sal to prove a retaliation claim.
On the other hand, it appears that Acme's motivation in terminating Sal wasn’t so much his refusal to provide verbal or written information about his alleged accident but Acme's suspicion that he didn’t injure himself, which was further supported by Sal's refusal to provide detailed information about the injury. Unfortunately, our system of workers' compensation provides untold avenues for unscrupulous employees to scam the system.